Basic problem: Under the State Department’s contract with Blackwater, the guards had to submit to questioning after the event. But the Fifth Amendment privilege against self-incrimination means that any statements they made under that compulsion can’t be used against them. Nor can prosecutors follow leads provided by those statements to develop the same evidence. The prosecutors seem to have bungled twice. First they let a grand jury hear some tainted testimony. Then, after they figured that out, they went back to a second grand jury and presented partial transcripts of the testimony to the first grand jury, leaving out the tainted bits. But they also left out some exculpatory material, which is an absolute no-no.
Some quick thoughts:
1. Naturally, there’s outrage in Iraq and elsewhere. If you’re used to a system where the fix is in, you assume that the American government wanted this outcome. Digby, pointing to the Stevens case, sees a pattern where DoJ under Buish made blunders that let right-wing bad guys go free. Personally, I try to avoid using bad motive as an explanation when incompetence (and overzealousness due to professional pride and ambition) seems to suffice. I very much doubt that Monica Goodling called the career Assistant U.S. Attorney running the case and gave him advice about how to screw it up.
2. Those of us who believe in the rule of law just have to suck it up. If the judge’s account of the events is correct, he had no choice but to dismiss the charges. Wingnuts, never limited by logic, are celebrating the liberation of the killers* while also using the result as an argument against giving accused terrorists fair trials. (They’re also treating the decision that a judicial decision rebuking errors made under the Bush Administration are a “stunning blow to Barack Obama’s Justice Department.”)
3. The dismissals were not “with prejudice”: that is, the prosecutors aren’t barred from re-indicting. But it’s hard to see how they can demonstrate now that evidence presented to a new grand jury wasn’t tainted.
4. But the good news – which the judge was at pains to point out – is that the guards, and their superiors, can be charged with obstruction of justice and lying to federal officers both for lying in those compelled interrogations and for the larger cover-up effort. Let’s see if the new crew at DoJ can rectify their predecessors’ blunders.
* Yes, “killers,” not “alleged killers.” That the defendants fired into the crowd is not in dispute. The question is whether they did so justifiably. The fact that they lied about their actions suggests that the answer is “no,” but that is – or would have been – a question for a jury to decide, so I refrain from calling them “murderers” as long as there might be a jury to decide the question.